As if it wasn't enough to be financially crushed by the worst economy in decades, if you are obligated to pay child support and willfully fail to do so, you can be on the receiving end of a criminal conviction.
Times are really tough. People are losing their homes due to foreclosure and seeing their jobs vanish due to a flattened economy that remains on life support. For those people obligated to pay support and haven't, there is the additional risk that they may suffer State or Federal prosecution if they are not paying their child support.
A recently published case on point United States v Davis (12/18/09) 8 Cir No. 08-3692(Riley) 2009 WL 4877587 determined that under the Child Support Recovery Act (CSRA) the government in prosecuting a parent for failure to pay child support need not show that the defendant was able to pay the total child support arrearage and willfully failed to do so but only that the defendant was able to pay part and willfully failed to do so.
In brief, father and mother separated in 1996. This relationship was a non marital relationship. Consequently,mother filed a request to establish fathers paternity and got a court order confirming he was the father of their two children as well as an order for father to pay child support.
Father seemed to always stay one step head of any income withholding order and kept changing jobs. By 2008, father owed over $52,000.00 in unpaid support. A federal Grand Jury handed down a two count indictment against father for violating CSRA for willful failure to pay his child support obligation. At the end of his trial, father was found guilty and sentenced to 2 years in federal prison and 1 additional year of supervised parole.
Father appealed the trial court ruling and sentence.The appellate court affirmed father's conviction. On review of the trial court proceedings, the appellate court felt the evidence was sufficient to establish willfulness because the defendant father could have paid more than he actually paid.
What does this all mean? The main message sent by the court is that if you owe any amount of support and fail to pay some if not all that you owe, then you could be convicted of a crime and face serious jail time.
If you owe support and can't pay it, take steps to work directly with the child support collection services to pay something on account of the support. If you are really in bad financial shape, you have to file a motion in the proper court to ask the judge to reduce your support payments and give you time to pay any arrearages.
Even though there is a cost for a skilled family law attorney to represent you on filing a motion to reduce support and negotiate support arrearages, the investment in getting the proper legal help may make the difference between freedom or jail. .